Making the Critical Moves: A Top Ten in Progressive Legal Scholarship

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f comparative law has any one thing to say to legal theory, it is that legal constructs are epistemically situated enterprises. Concepts—and critiques—take different meanings depending on their community of reference. No doubt, extensive legal similarities exist throughout the world. There are numerous transplants and borrowings as well as colonial and neo-colonial impositions of law. Yet, beyond surface similarities, effective meanings can vary considerably. Members of a given interpretive community create the conceptual and relational associations that make particular sense to them.

Accepting this point means there is no singular path forward for either construction or critique. They both vary according to situational understandings. This observation is not limited to comparisons of very different societies, in which the concept of law itself may vary. It equally stands with respect to historically related legal communities. For example, property relations in a given place may be confined to identifying an individual owner with absolute rights. Yet, elsewhere in the same legal tradition, property law may impose affirmative duties on holders—like requirements to cultivate rural land or build housing on urban lots. Similarly, originalist constitutional interpretation may be quite convincing in some contexts—definitively demonstrating the founders’ intended resolution of novel constitutional questions. In other places, with not dissimilar constitutional regimes, originalism may be completely irrelevant or impossible to reconstruct meaningfully in the opinion of mainstream commentators.